Up until recently, we were all laboring under the illusion that U.S. Pakistani “friends” had reluctantly agreed to allow the United States kill al Qaeda and the Afghan Taliban with drone attacks on their soil in exchange for bucket loads of cash in foreign aid. Now we find out that, right from the start, the Pakistanis would permit U.S. drone attacks in Pakistan only if the United States also killed an Islamist militant leader whose forces were focusing their attacks on the Pakistani government. In June 2004, in the first targeted assassination in Pakistan using a Predator drone, the Bush administration killed Nek Muhammad, a militant who primarily focused his ire on the Pakistani state.

The casual observer might ask, “In a war against the perpetrators of 9/11, what difference is there between horse trading for an anti-al Qaeda drone war in Pakistan for foreign aid or the killing of an anti-Pakistani militant?” There is a big difference constitutionally.

One can debate the wisdom of shoveling huge amounts of aid money to a Pakistani nation that is at the same time an ostensible ally and the principal supporter of the Afghan Taliban, which the United States is currently fighting in neighboring Afghanistan; but at least the foreign aid has always been out in the open and approved by Congress. Not so with the secret war on Nek Muhammad and what is called the Pakistani Taliban. But Afghan Taliban, Pakistani Taliban, aren’t they all the same? No, especially not in the eyes of the U.S. Constitution.

In response to the 9/11 attacks, the congressionally approved Authorization for the Use of Military Force (AUMF), stated,

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Thus, this resolution was intended to authorize U.S. attacks on al Qaeda and the Afghan Taliban. At the very least, going after Islamist fighters primarily attacking the Pakistani government started getting the United States into murky constitutional ground.

In a republic, at that point, there should have been a debate about how wide the Bush administration’s “war on terror” should have reached. And the Bush administration probably would have won it; the 9/11-enraged American public probably would have imprudently yelled, “kill ‘em all, let God sort ‘em out.” Of course, it has hard to have that debate when the president reached a clandestine deal to start a secret war that skirted the required constitutional checks and balances, which attempt to restrain executive war-making power in the American constitutional system.

The Bush administration also covertly launched congressionally unauthorized and thus more clearly unconstitutional wars in Yemen, Somalia, and perhaps in other countries against Islamist groups that had nothing to do with the 9/11 attacks. President Obama has expanded all of these targeted assassination wars without getting the required constitutional approval and has even begun to kill Americans in these places.

In addition to the critical constitutional erosion in expanding targeted killings outside al Qaeda and the Afghan Taliban, practical ill effects abound. Going after other militant groups has further destabilized Yemen, Somalia, and Pakistan, a country with nuclear weapons. Drone attacks are very unpopular in the targeted countries and have made the United States new enemies, who have attempted blowback terrorist attacks on American soil. The goal of U.S. foreign policy should be to make the republic safer, not to become an end in itself that increases the danger.

Also, the targeting of Nek Muhammad in June 2004 happened within a month of a damning report by the CIA inspector general on abuses in CIA secret prisons, which spurred the CIA to change from capturing terrorism suspects to gain valuable information to simply assassinating them. The CIA drone program has changed the agency from an intelligence agency to a paramilitary organization, also a dangerous development in a republic.

In a society that still has some semblance of freedom, often the truth eventually comes out. Unfortunately, it is often too late to do much about unconstitutional and just plain bad policies. One of the biggest mistakes President Obama has made so far is not only failing to investigate the Bush administration’s illegal and unconstitutional behavior, but actually continuing, and in some cases, expanding its policies.

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University.

He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books "Partitioning for Peace: An Exit Strategy for Iraq", and "Recarving Rushmore".

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